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CITY OF ST. PETE BEACHCITY COMMISSIONIN RE:ATTORNEY/CLIENT SESSIONPROCEEDINGSTAKEN AT:St. Pete Beach City Ha11155 Corey AvenueSt. Pete Beach, F10ridaDATE AND TIME:TuesdayJanuary 11, 20115 p.m.REPORTED BY:Phy11is A. SemanchikCertified Court Reporter (NJ)F10rida Professiona1 ReporterNotary Pub1ic, State of F10ridaKanabay Court Reporters556 First Avenue NorthSt. Petersburg, F10rida 33701(727) 821-3320Kanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
21B E FOR E:2ST. PETE BEACH CITY COMMISSION3AL HALPERN, DISTRICT 1JIM PARENT, VICE MAYORMIKE FINNERTY, MAYORMARVIN SHAVLAN, COMMISSIONER, DISTRICT 3BEV GARNETT, COMMISSIONER, DISTRICT 4MIKE BONFIELD, CITY MANAGER4567MICHAEL DAVIS, CITY COUNSELSUZANNE VAN WYK (BY y Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813224-9500
3PROCEEDINGS1MAYOR FINNERTY:2I now announce the3commencement of the attorney-c1ient session on4Tuesday, January 11, 2011, at five o'c1ock in5accordance with F10rida State Statute 286.0118,6regarding the fo11owing 1awsuit sty1ed Py1e vs.7Finnerty, Case Number 08-08129-CI-08 and808-8642-CI-19.9Number 08-12498-CI-19.10A1so Kadoura vs. Huhn.That is CaseThe attorney/c1ient session wi11 be11attended by Mayor Michae1 Finnerty, City Manager12Mike Bonfie1d, Commissioner A1 Ha1pern, Commissioner13Jim Parent, Commissioner Marvin Shav1an,14Commissioner Bever1y Garnett, Michae1 Davis, the15attorney, Suzanne Van Wyk, Esq., and an officia116court reporter, as provided by 1aw.17those individua1s may participate by phone.18The estimated 1ength of the19attorney-c1ient session is one hour.20See you in an hour.212223One or more ofThank you a11.(Attorney/c1ient session begins at 5:04p.m.)MR. DAVIS:We wi11 proceed with the24c10sed session, and you have heard -- Commissioners,25you have heard this over and over again, but for theKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
41record I will state i t again.2final action in this meeting, nor do we propose to3take any final action in this meeting.You cannot4take any final action in this meeting.You can't5pass a resolution or pass a motion to direct us to6do anything or not to do anything.7this is about.89We cannot take anyThat is not whatThis is for the two reasons specified inthe statute that we are allowed to meet in these10executive sessions with respect to pending11litigation, for two purposes.12possible settlement and/or to discuss litigation13strategy as i t relates to litigation expenditures.14That is what we will be doing tonight.15focus really will be16about the pros and cons of taking an appeal in the17two cases, the Kadoura v. Huhn case and the Pyle vs.18City case, and the ramifications of that.19One, to discussAnd thefirst we want to talk to youThen, of course, we have also got several20left communications from Ken Weiss talking about21some possible resolution.22well.23We can talk about that asI am going to let Suzanne Van Wyk24basically talk to you about that, about the issues25involved, and our recommendation.The time periodKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
51for taking an appeal, the last day for doing i t is2the 28th of this month.3is either we could take an appeal, we being the4city, or the other side could take an appeal in the5Kadoura vs. Huhn case.6only be the city that could take an appeal.7reason for that is because the City prevailed on a8number of counts in the Kadoura vs. Huhn case9other words, you won.The way the process worksThe Pyle case that wouldTheinThat being the case, the10other side has the opportunity to appeal those, like11as we have the opportunity to appeal the counts that12we lost on.13If we take an appeal on the 28th or prior14thereto, ten days -- within ten days after the15filing of that notice of appeal, then the other side16can file a cross-appeal in which they would then17raise the issues that they want to bring to the18Appellate Court.19Kadoura vs. Huhn having all of the issues before the20Appella te Court.21So, you may -- we may end up inIn Pyle, of course, the City would be22taking an appeal, and the issues are fairly straight23forward.24Our recommendation in a nutshell is that25you authorize us to take the appeal in both cases.Kanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
61I wi11 1et Suzanne go ahead and ta1k to you about2this in more detai1.4Good evening, Mr. Mayor,MS. VAN WYK:3Commissioners.5Can you hear me okay?I had made an out1ine for myse1f working6our way through the shade meeting this evening, and7what I wanted to do was to reach out very brief1y8the fina1 judgment in both of the cases and discuss9why we wou1d recommend an appea1, if that is usefu110to you, and then ta1k about the timing of an appea111and costs.1213I am sorry.MR. BONFIELD:coming in?No.Do you have a ca11You b1acked out for a moment.MS. VAN WYK:14Did someone say something?No, I don't have a ca1115coming in.16speaker so that I can have my hands free.17I wi11 just make sure I am c10se to theDoes that sounds 1ike a good way to18proceed or do you have specific questions you just19want to jump right into?20MR. DAVIS:21proceeding that way?2223MR. HALPERN:Are you a11 okay withYou are going to exp1ain whyyou think we shou1d go forward with an appea1.24MR. DAVIS:25MS. VAN WYK:Go ahead, Suzanne.In the Py1e amended fina1Kanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
71judgment, which was just issued, I want to touch on2a few of the points.3ballot summaries to be invalid because the ballot4summary did not specifically include the height of5some structures as being increased.6The judge found all of theIt is our argument and has been our7argument that an increase in height is but one of8the many tools that is used to encourage9redevelopment in the plan; and that the chief10purpose, which is what the case law requires you put11in your ballot, is the encouragement of the12redevelopment and the creation of the CRD to do13that.14In addition, the judge found 2008-10,15which is the comp plan amendment ordinance, to be16invalid because it did not indicate that the housing17element of your comprehensive plan was being18changed.19consistent with the other affordable housing20incidents in the CRD in the greater portion of the21plan.22not significant enough to rise to the level of being23included.2425That element was only being changed to beSo we, of course, would argue that that isAs to 2008-10, the judge also found thatheight should have been disclosed pursuant to theKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
81Charter Section 3.18, and 3.18 does not apply2because i t applies to land development regulations3in 2008-10 in the comprehensive plan.4There is also -- he also seemed to focus5on a shift in density, which was not disclosed and6again was not the chief purpose, but again was one7of the tools for redevelopment.89On the other ordinances, the LOR, the mainreasons -- the three LORs, I am sorry.The main10reasons they were found invalid, one was they didn't11disclose an increase in height.12the elector that they would be voting to approve13rezoning property and they said that variances to14height increases would be prohibited.15ordered that that was meaningless because they were16already prohibi ted.17They didn't informThe judgeSo, I just wanted to recap with you why18the judge found them invalid, because there were19many, many grounds on which they were challenged,20things like beach access and affordable housing and21green standards.22those reasons, at least this court didn't find any23of those reasons to be sufficient.2425They did not prevail for any ofSo, my big responses that I have justgiven you to why I think the judge was wrong wouldKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
91be our bases for appeal, that he incorrectly2determined that the case law -- that we violated the3ballot summary requirement of the statute.4didn't apply the law correctly because the chief5purpose was conveyed.6heard at your meeting on Thursday night, if you went7through and put in everything the judge should have8been in, you would never get within the 75 words.And the presentation youSo, that is the recap of that case for Mr.910And heKadoura.Do you have questions on that one?11MR. HALPERN:Suzanne, this is Al Halpern.12What if we appeal and we are successful on one or13two counts or half the counts and not successful on14others?15comprehensive plan then be invalidated or validated16or what?17here.18us the plan.What have we really gained?Will theIt doesn't seem like we have a lot to gainEven if we win a few points, that doesn't buyMS. VAN WYK:19Well, the Pyle case, there20are four ordinances that were invalidated.If we21were only to appeal as to the 2008-10, which you22could choose to do, but you would be conceding that23the others were valid -- were invalid.24would be.25appeal on the wrong law or the law having beenBut the LDRsBut certainly when we are going for theKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
101applied incorrectly, we are trying to reverse the2decision on all four.3When we talk about the Kadoura case, we4can talk about the separate counts.5one that actually had nine counts.MR. BONFIELD:6That was theI think what Commissioner7Halpern was saying was that each ordinance was8thrown out for three reasons; and if the appeals9court doesn't overturn all three reasons, we have10accomplished nothing, which is correct, right?1112MR. DAVIS:If we stilllose on appeal, i t doesn't matter what basis.MR. HALPERN:1314That is right.We have to win everything ornothing.15MR. BONFIELD:16MR. DAVIS:17MR. BONFIELD:For each ordinance.Right.There are three items for18each ordinance.19ordinances and lose on an ordinance or two.20You can maybe win on one or twoMR. PARENT:Or you could win on two out21of three issues for each ordinance and still lose22everything else.23MR. DAVIS:It is possible that if we take24an appeal in Pyle that the court, the Appellate25Court, might say the ballot summary for ordinanceKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
1112008-10 is valid and we might win that.2say the one for the LDRs is invalid.3that one.4They mightYou might loseThat could be one scenario.If you take an appeal, there is what is5called an automatic -- what is called an automatic6supersedeas under Florida law, which means that the7comp plan and the LDRs remain in effect while the8appeal proceeds.9in order to stop the judge's order from beingNormally when you take an appeal,10immediately effective, you have to post a bond.11don't have to do that because you are a city.MR. HALPERN:12YouLet me ask you this, then.13If we do post an appeal, when -- would that appeal14usually be heard quite some time off, I believe?15MR. DAVIS:Go ahead, Suzanne.16MS. VAN WYK:The initial brief would be17due on April 8th and then we have to go through the18exchange of briefs.1930 days -- I am sorry -- 20 days to file their reply20brief.I believe they would haveSuzanne, would we be able to21MR. HALPERN:22withdraw the appeal at any time?23MR. DAVIS:24MR. HALPERN:25Yes.UnlessYou know where I am going.If the election in March is successful, the appealKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
1212is immaterial.MR. DAVIS:Well, i t may be.We want to3talk to you about whether i t is immaterial or not,4because there is a scenario.5your opponent will follow any method that can be6followed to try to block it, there may be a7challenge filed with respect to the comp plan and8when you readopt i t by ordinance after the repeal of9the hometown democracy provisions.If you assume thatYou understand10that's the process.11You don't have to resubmit i t to DCA.12You readopt i t by ordinance.There may very well be a challenge filed13at that point, and the appeal may not be unnecessary14at that point.15161718192021MR. BONFIELD:You may get a whole anotherballot language appeal -- challenge.MR. DAVIS:You can cross that bridgeafter we know the outcome of the March election.MR. HALPERN:That is why I asked whetheran appeal can be withdrawn.MR. DAVIS:It can be, and the first brief22is not due until I think we said April 8th.So,23there is time.24going to be done between the time of that election25in March and April 8th when the brief is due.The bulk of the legal work is reallyKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
13MS. GARNETT:1How much time do they have2between the election and filing a complaint on the3election, whether i t is a ballot challenge or4whatever they decide to challenge?MR. DAVIS:5Unfortunately, there is no --6there is most likely a statute of limitations, but7i t is a statute of limitations that is a period of8years.910MS. GARNETT:MR. DAVIS:Years?Yes.Now, let me back up.11There are some types of e1ection challenges that12need to be filed within a very short time period.13The Florida statute 102.168 says that an election14contest that is based on fraud, corruption, illegal15votes, bribery and things like that has to be filed16from ten days within certification of the election,17for example.18But this type of a challenge doesn't have19that type of a short time period.I think the time20when you are probably going to see the challenge --21they may file i t sooner than that, but I think you22will see it, if at a1l, after you readopt the23ordinance to readopt the comp plan.24that point, if you are going to see a chal1enge that25is probably when you wil1 see it.And I think atKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
14MR. PARENT:1My question is -- and I asked2this I think at one of our previous open meetings3and didn't hear the answer -- if we -- I guess part4of the question is what comprehensive plan is in5place today.MR. DAVIS:6The one that Suzanne sustained7in front of the DCA, the one that was pursuant to8the initiative.MS. VAN WYK:910The one that was adoptedpursuant to 2008-15 is in effect today.11MR. DAVIS:12MR. BONFIELD:Right now i t is in effect.Until January 28th.And if13you appeal, i t will continue to be in place.If you14don't, i t won't.15161718MR. PARENT:question.That is the second part of myThen what is in place?MR. DAVIS:Well, the one that was ineffect before that.19MR. PARENT:20MR. DAVIS:21MR. PARENT:1998?Whatever.And that would be until -- if22we assume the issue passes on the ballot, this23March 8th ballot, that would be until the Commission24could act to pass an ordinance.25four weeks after March 8th at the earliest, to putTwo readings, soKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
151this comp plan back in place.21998 plan?3MS. VAN WYK:4MR. BONFIELD:We would have theThat is correct.Suzanne, would that put the5process to adopt the 2009 plan in a different place6than if we have the appeal and keep i t active?7MS. VAN WYK:8MR. BONFIELD:92009 plan?Yeah.Because under thatscenario, then, the 2009 plan is gone from10January 28th until whenever i t is adopted, which11would be maybe the end of March, beginning of April.12Would we still not have to go through the whole DCA13review process then?MS. VAN WYK:1415judgment and order stand as invalid.MR. BONFIELD:1617That is why you want to doit.MS. VAN WYK:1819Only if you let thisbooks.The plan that is on theThen you are going to have to start over.MR. DAVIS:20Expand on that a little bit.21I want to make sure everyone understands what you22just said.23MS. VAN WYK:I explained a little bit of24this on Thursday night.As usual with St. Pete25Beach, we are treading into uncharted territory.Kanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
161This is my ana1ysis of how this works.2Right now you have a comprehensive p1an3amendment on the books that has gone through the4wh01e Growth Management Act, has been cha11enged as5inconsistent with the Growth Management Act, both in6administrative proceeding and in circuit court, and7the p1aintiff and petitioner have 10st both of those8or a11 of those cha11enges.So, your comprehensive p1an amendment is910in p1ace and va1id under the Growth Management Act.11It has been inva1idated under your charter because12of the e1ection requirements.13suspend the effect of that judge's order and keep i t14in effect, you need to appea1.15fee1 that you have good grounds for appea1, which we16do.17But in order toOf course, if youIf the e1ection -- if the e1ectors chose18to repea1 those sections of the charter on19March 8th, you cou1d readopt that comprehensive p1an20by ordinance, because i t is in effect under the21Growth Management Act, just not under your charter,22and be done with it.23cha11enges there may be to that action for a minute.24But if the judge's order goes into effect,25Let's put aside whatI think you are going to have to start over with aKanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
171new comprehensive plan amendment, which means the2transmittal hearing that the DCA goes through, all3of their review and the review agencies, and you get4through that and have another public hearing and you5have to adopt an amendment, and then there is a630-day window for challenges again.MR. PARENT:7With all due respect, though,8I don't understand that one yet because -- and I9know i t is probably pure precedent and legislative10action, but what I hear you saying is that the11judge's order impacted the election that we had in12'09.13MR. DAVIS:14MR. PARENT:15plan itself, did not.16comp plan.17invalidating purely the election, but not the18content of that election, that all of a sudden that19con ten t becomes bogus.20MS. VAN WYK:2122'08.It didn't impact the compSo, nothing changes on theAnd yet if we allow his orderIt is because i t will remainbecause i t is being suspended on appeal, though,their comprehensive plan stays in effect.MR. DAVIS:23I think what is being asked is24why does i t matter whether i t is suspended on appeal25or not.Kanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
181MR. PARENT:It seems to me that is no2different than if you passed the plan through the3DCA and intended -- in a normal city intended to4pass i t by ordinance, and for one reason or another5i t took an extra month longer and you had the old6plan in effect an extra month or two months or7three months.8passing i t on ordinance, the one that had been9through the DCA.10111213Then you finally got around toIt doesn't seem like there is ashelf life on those plans once they are through DCA.MR. DAVIS:Suzanne, you need to speak tothat issue.MS. VAN WYK:I am sorry.I am not trying14to be obtuse here.15the question.16this plan off the books, that is what I am saying.17I guess I am not understandingIf we don't appeal we have to takeMAYOR FINNERTY:How much is this going to18cost us in dollars?19the other side at this time?20MR. DAVIS:Is there a settlement offer byWell, to answer the first21question, the cost of the appeal -- there are two22cases that we are talking about here.23about Pyle, I think we concluded the upside24number -- in other words, hopefully i t will cost25less than this -- is about 21,000.Just talkingThat's Pyle.Kanabay Court Reporters - Serving the Tampa Bay AreaPinellas 727 821-3320; Hillsborough 813 224-9500
191Kadoura, which we haven't rea11y ta1ked2about yet, we conc1uded the same number as an u
Kanabay Court Reporters -Serving the Tampa Bay Area Pinellas 727 821-3320; Hillsborough 813224-9500 2 . 1 PROCEEDINGS 2 MAYOR FINNERTY: I now announce the 3 commencement of the attorney-c1ient sessi
